The questions below offer a general framework on the rights of a suspect, police custody, pretrial detention and judicial control, criminal complaints, istinaf appeals and appeals to the Court of Cassation. In a specific case, the time limits, the documents and the regulations in force are assessed separately.
Showing 1–6 of 6 questions
What are the basic rights of a person summoned to give a statement as a suspect?
A suspect has the rights to learn of the accusation, to remain silent, to benefit from the assistance of defense counsel, to request that evidence in the suspect’s favor be collected, and to give a statement in accordance with the law.
Article 147 of the Code of Criminal Procedure (CMK) sets out the basic safeguards for statements and interrogation. The accusation must be explained, identity details must be recorded accurately, and the suspect must be informed of the right to the assistance of defense counsel and the right to remain silent. A suspect cannot be compelled to make a statement without knowing these rights; whether the statement was voluntary is important. Where mandatory defense counsel is required, the rules under Article 150 of the Code of Criminal Procedure apply. It is important that the statement record be read from beginning to end, that corrections be requested for incorrectly written sentences, and that documents and witnesses in the suspect’s favor be clearly identified. Being summoned to give a statement or being subjected to a law enforcement measure does not mean the person is guilty; the defense strategy must be built on the accusation and the concrete evidence.
What rules govern the review of the file in a criminal investigation?
As a rule, defense counsel may review the investigation file; for certain offenses, a restriction on review subject to statutory conditions may be imposed by a judge’s decision.
Article 153 of the Code of Criminal Procedure regulates defense counsel’s authority to review the file and obtain copies of documents during the investigation phase. For certain listed offenses, if it would jeopardize the purpose of the investigation, this authority may be restricted by a judge’s decision upon the request of the public prosecutor. However, documents that the law expressly excepts and the suspect’s right of defense remain separately protected. Rather than stating in general terms that access to the contents of the file has been denied, the defense should identify the scope of the restriction decision, its reasoning and which document it affects. A restriction does not mean the authority to keep the entire file secret indefinitely. The regime of openness in the prosecution phase is assessed separately from the investigation phase.
Which principles apply when evaluating unlawfully obtained evidence?
Whether unlawfully obtained evidence can be used as the basis of a judgment is assessed in line with the express prohibitions of the Code of Criminal Procedure; the criminal accusation alone does not show that the evidence is lawful.
Articles 206(2)(a) and 217(2) of the Code of Criminal Procedure are among the basic safeguards concerning the use of unlawfully obtained evidence as the basis of a judgment. For evidence such as searches, seizures, digital examinations, identifications, and telephone and camera recordings, it is checked whether the relevant procedure was followed. The manner in which the evidence was obtained, its preservation, the procedure by which it was added to the file, the preparation of records and its discussion at the hearing are separate matters. Because the consequence of each procedural deficiency may not be the same, the effect of the specific violation on the reliability of the evidence and on its use as the basis of the judgment must be reasoned. Defense counsel may request that evidence in the suspect’s favor be collected and that unlawful evidence not be used as the basis of the judgment.
Can a suspect exercise the right to remain silent in a statement before the public prosecutor?
Yes; a person has the right not to be compelled to make a self-incriminating statement.
Under Article 147 of the Code of Criminal Procedure, the accusation must be explained and the person must be informed of the right to the assistance of defense counsel and the right to remain silent. The obligation to state identity details accurately is distinct from the right to remain silent regarding the accusation.
Is the suspect’s consent sufficient in every case for the examination of a phone?
Interference with digital data may be subject to the statutory procedure and to a decision of the competent authority, depending on the scope of the measure.
The conditions of search, copying, seizure and digital examination measures must be examined under Article 134 of the Code of Criminal Procedure and other relevant provisions. The record, the handing over of the device, the scope of the examination and the preservation of the data are important for the defense.
Can an expert report in an investigation file be challenged?
Yes; objections and a request for a further examination may be made regarding the report’s technical assumptions, method and conclusions.
The data on which the report is based, the procedure by which it was added to the file, the documents not examined and the limits of the expert’s expertise should be identified one by one. If the expert makes a legal characterization, the court’s authority to make the legal assessment may be pointed out.